NEW MEXICOPROBATE JUDGES MANUAL 2013SAMPLE FORMS AND CHECKLISTS

This list includes sample forms and checklists that may be used by the Probate Court, including the judge and clerk. It does not include forms used by other courts or individuals.

These forms and checklists are provided as samples only.

Manual Section Sample Form/Checklist

3.1.5 Sample Order Appointing a Successor Personal Representative

3.2.1 Sample Order for Informal Appointment of Special Administrator

3.2.2 Sample Letters of Special Administration

3.2.3 Sample Order for Informal Appointment of Special Administrator,

Medical Records Only

3.2.4 Sample Letters of Special Administration, Medical Records Only

4.1.4 Docketing Checklist

4.3.2 Certificate Acknowledging Receipt and Review of Death

Certificate

4.8 Probate Case Checklist-Things to Watch For

4.10 Checklist of Informal Probate and Appointment Pleadings

6.3.6 Sample Log: Public Access to Probate Court Files

7.3.2 Sample Form of Transmittal Memorandum for Transfer to District Court

7.3.3 Sample Order for Permanent Transfer to District Court

7.3.4 Sample Order of Recusal and Transfer to District Court

7.3.5 Sample Order for Transfer to District Court with Remand to Probate Court

after Resolution of Dispute

7.3.6 Sample Order to Decline Jurisdiction “for any reason”

7.3.7 Sample Order of Recusal for “ex parte” Communications

10.14 Sample Authentication Form

10.15.1 Sample Affidavit Form: Successor in Interest [DO NOT MODIFY]

(over)

10.16.1 Sample Affidavit Form: Transfer of Homestead to Surviving Spouse Pursuant

to NMSA Section 45-3-1205 [DO NOT MODIFY]

Additional Probate Court Forms from the New Mexico Rules Annotated

4B-103 Order of informal appointment of personal representative (no will)

4B-104 Order of informal probate of will and appointment of personal representative (will)

4B-106 Letters of administration (no will)

4B-107 Letters testamentary (will)

3.1.5 Sample Order Appointing a Successor Personal Representative

IN THE PROBATE COURTCOUNTY OF ________________STATE OF NEW MEXICO

No.

IN THE MATTER OF THE ESTATE OF_____________________, DECEASED

ORDER APPOINTING SUCCESSOR PERSONAL REPRESENTATIVE

This Court has received an Application for Informal Appointment of Successor Personal Representative that seeks an Order appointing a successor personal representative. The Court FINDS:

1. Sections 45-3-303(F) and 45-3-613, NMSA 1978 govern the appointment of a successor personal representative of an estate.

2. The Court has reviewed the Application for Informal Appointment of Successor Personal Representative.

3. The personal representative ____________, appointed by the Court on ________, 20____, has submitted a written resignation to the Court. [or can modify to say “Proof of the death of personal representative ___________ has been submitted to the Court.”]

4. _________________ has priority to be appointed as successor personal representative and has submitted paperwork asking to be appointed. OR

____________ has consented in writing to the appointment of ___________ as successor personal representative. NMSA 1978, Section 45-3-203.

THEREFORE, THIS COURT ORDERS that:

A. The Application is granted;

B. The appointment of __________ as personal representative of the estate is terminated due to his/her resignation [or death--modify order as needed]);

C. ____________ shall deliver decedent’s assets, receipts, accountings and other information pertaining to the estate to the successor personal representative;

D. _____________ is informally appointed as the successor personal representative of the estate of the decedent, without bond, in an unsupervised administration;

E. Letters of Administration [or Letters Testamentary] shall be issued to ___________ upon his/her acceptance of the office of successor personal representative.

THE HONORABLE ______________

________________________________ __________ County Probate Judge

3.2.1 Sample Order for Informal Appointment of Special Administrator

STATE OF NEW MEXICOIN THE PROBATE COURTCOUNTY OF ____________________

No.

IN THE MATTER OF THE ESTATE OF________________, DECEASED

ORDER APPOINTING SPECIAL ADMINISTRATOR WITH LIMITED POWERS

Upon the application of ______________________, a person known to be interested in

this estate, for the appointment of a special administrator pending the appointment of a general

personal representative; date of death being confirmed by review of decedent’s death certificate;

and upon good cause shown, the Court finds that a special administrator should be appointed.

Judges can enter relevant reason(s) above, for example:

five days have not elapsed since decedent’s death, but an immediate appointment

is necessary to arrange decedent’s burial/cremation; or,

all written consents to the appointment of personal representative have not yet

been obtained, but the appointment is necessary to preserve decedent’s estate;

or,

an appointment is necessary to secure decedent’s home or apartment; or,

any other reason that shows “good cause.”

IT IS, THEREFORE, ORDERED that ______________________ is hereby appointed

special administrator of the estate of ______________, deceased, to collect and manage the

assets of the estate, to preserve them, to account for and deliver such assets to the general

personal representative, once he or she is appointed by the Court, and until further order of this

Court.

______________________ shall not have the full powers of a personal representative,

but shall have the power to:

[JUDGES MAY LIMIT OR MODIFY THIS LIST AS NEEDED]

1. access and secure the decedent’s home;

2. search for and notify heirs of decedent;

3. locate and preserve, including storage, other assets of decedent;

4. access and handle decedent’s mail;

5. pay decedent’s debts, including but not limited to credit card debts, as they become due;

6. access decedent’s bank accounts for the purpose of paying decedent’s debts as they become

due;

7. communicate with the Social Security Administration about decedent’s benefits and the

proper termination thereof;

8. communicate with taxing authorities, including, but not limited to, the Internal Revenue

Service and New Mexico Taxation and Revenue Department;

9. access and acquire copies of decedent’s medical records from hospitals or other health care

institutions in accordance with HIPAA privacy regulations;

10. transfer title to decedent’s vehicle with the New Mexico Department of Motor Vehicles; and

11. such other powers as may be necessary to preserve and protect decedent’s estate.

______________________ shall not have the power to liquidate or distribute decedent’s

assets. ______________________ shall keep and provide a full accounting of expenditures and

income of the estate to all interested persons.

Optional, if needed: The Court shall treat ______________’s Acceptance to serve as personal

representative as an Acceptance to serve as special administrator of the estate of

_______________.

The Court shall issue Letters of Special Administration to ___________ upon applicant’s

acceptance of the office of special administrator.

THE HONORABLE _______________________

___________________________________________________ County Probate Judge

3.2.2 Sample Letters of Special Administration

STATE OF NEW MEXICOIN THE PROBATE COURT_________________ COUNTY

IN THE MATTER OF THE ESTATE OF No. ______________________________, DECEASED.

LETTERS OF SPECIAL ADMINISTRATION

TO WHOM IT MAY CONCERN:

Notice is now given ___________________ has been appointed to serve as the special administrator of the estate of ________________________, and has qualified as the decedent's special administrator by filing with the court a statement of acceptance of the duties of that office.

_________________ shall not have the full powers of a personal representative, but shall have the power to:

Judges can list specific powers granted to the special administrator in the Order Appointing the Special Administrator in this space.

________________________ shall not have the power to distribute decedent’s assets, but shall collect and manage the assets of the estate, preserve them, account for and deliver such assets to the general personal representative, once he or she is appointed.

Issued this ____ day of _________________, 20___.

_________________________________ Clerk of the Probate Court

(Seal) by: _______________________________Deputy Clerk

3.2.3 Sample Order for Informal Appointment of Special Administrator, Medical Records Only

STATE OF NEW MEXICOIN THE PROBATE COURTCOUNTY OF ____________________

No.

IN THE MATTER OF THE ESTATE OF________________, DECEASED

ORDER APPOINTING SPECIAL ADMINISTRATOR WITH LIMITED POWERS

Upon the application of ______________________, a person known to be interested in

this estate, for the appointment of a special administrator pending the appointment of a general

personal representative; date of death being confirmed by review of decedent’s death certificate;

and upon good cause shown, the Court finds that a special administrator should be appointed.

IT IS, THEREFORE, ORDERED that __________ is hereby appointed special

administrator of the estate of ___________, deceased. ____________ shall not have the full

powers of a personal representative, but shall have only the power to:

Access and acquire copies of decedent’s medical records from hospitals, health care

providers, and other health care institutions or facilities that provided treatment of the

decedent prior to death and to be treated as a “personal representative” in accordance

with HIPAA privacy regulations for the sole purpose of obtaining decedent’s medical

records. [Judge can list specific health institution(s) if known.]

____________ shall not have the power to access, liquidate or distribute any other assets

of decedent.

The Court shall treat __________’s Acceptance to serve as personal representative as an

Acceptance to serve as special administrator of the estate of _____________. The Court shall

issue Letters of Special Administration to ___________ upon entry of this order.

THE HONORABLE __________________

___________________________________________________ County Probate Judge

3.2.4 Sample Letters of Special Administration, Medical Records Only

STATE OF NEW MEXICOIN THE PROBATE COURT_________________ COUNTY

IN THE MATTER OF THE ESTATE OF No. ______________________________, DECEASED.

LETTERS OF SPECIAL ADMINISTRATION

TO WHOM IT MAY CONCERN:

Notice is now given ___________________ has been appointed to serve as the special administrator of the estate of ________________________, and has qualified as the decedent's special administrator by filing with the court a statement of acceptance of the duties of that office.

_________________ shall not have the full powers of a personal representative, but shall have the power to:

Access and acquire copies of decedent’s medical records from hospitals, health care providers, and other health care institutions or facilities that provided treatment of the decedent prior to death and to be treated as a “personal representative” in accordance with HIPAA privacy regulations for the sole purpose of obtaining decedent’s medical records. [Judge can list specific health institution(s) if known.]

________________________ shall not have the power to distribute decedent’s assets, but shall collect and manage the assets of the estate, preserve them, account for and deliver such assets to the general personal representative, once he or she is appointed.

Issued this ____ day of _________________, 20___.

_________________________________ Clerk of the Probate Court

(Seal) by: _______________________________Deputy Clerk

4.1.4 Docketing Checklist

PROBATE COURT DOCKETING CHECKLIST

Name of decedent Applicant’s name Statement of applicant’s relationship to decedent Date of decedent’s death and age at time of death Statement of domicile is in __________ County OR Decedent did not live in New Mexico, but owned property in ________ County and

30 days or more have elapsed since decedent ‘s death (Section 45-3-307(A)) Death Certificate has been submitted or will be submitted___________________ Information regarding domicile, marital status, date of death and age at time of death

matches information provided in Application or can be corrected Spouse, children, heirs and devisees are listed (even if incomplete addresses)_ If there is a will, the date the will was executed If a will is submitted, submitted will is original, not a copy The heirs and devisees listed in the will match the heirs and devisees listed in the

application or information can and will be corrected Demand for Notice box is checked or can be checked by court Five days (120 hours) have elapsed since decedent’s death (if not, case can be

docketed, but judge cannot sign order appointing PR until 120 hours after death) No more than 3 years have elapsed since decedent’s death; if there is no will and it

has been more than 3 years, application needs to contain a statement that he/she is opening probate to confirm title to property

Probate Court has jurisdiction to act, and case does not involve determination of heirs, missing heirs, trusts, formal probate (see Section 45-1-302)

Any required consents are attached or can be obtained Application is signed by applicant or attorney Application includes a notarized verification with applicant’s signature Docket fee is submitted or waived for indigence by the court (judge only)

If any of the above is NOT true, judges should not docket the case, but should inform the attorney, runner, or pro se applicant of the problem.

If a case meets the above requirements, judges should docket the case even if it contains any of the following technical errors:

Lack of conformity of form, such as margins, style, etc. Technically deficient pleading Wrong forms, intestate instead of testate or vice versa Wrong court caption Ages of minor heirs/devisees/children missing Personal Representative failed to list self on application Incomplete addresses for heirs/devisees, etc.

Expedite?Issues?

4.3.2 Certificate Acknowledging Receipt and Review of Death Certificate

STATE OF NEW MEXICOIN THE PROBATE COURTCOUNTY OF ____________________

NO.

IN THE MATTER OF THE ESTATE OF

____________________, DECEASED

CERTIFICATE ACKNOWLEDGING RECEIPT AND

REVIEW OF DEATH CERTIFICATE

I, __________________, ________________ County Probate Judge, acknowledge

having reviewed the death certificate in the above-captioned probate action, having confirmed

the date of decedent’s death listed on the application is correct, and having returned said death

certificate to the personal representative or attorney for the estate.

[In some cases, a death certificate is not available pending an investigation by the Office of the

Medical Investigator into the cause of decedent’s death. In those cases judges can modify the

language to read: I, ___________, __________ County Probate Judge, acknowledge having

reviewed the Pending Letter from the Office of Medical Investigator in the above-captioned

probate action, having confirmed the date of decedent’s death listed on the application is correct,

and having returned said Letter to the personal representative or attorney for the estate.]

WITNESS my hand and seal of the Probate Court on this ______ day of ______________,

20___.

THE HONORABLE ______________

(SEAL)

_________________________________ _____________ County Probate Judge

4.8 Probate Case Checklist—Things to Watch For

1. Does the court caption say Probate Court and not District Court?2. Does the name of the decedent match the name on the death certificate and will, if any?3. Is the personal representative with highest priority to serve asking for appointment?

If there is a will, is the personal representative who is applying named as first choice? o If no, have proper renunciations/consents been filed?

If no will, are there several people who have equal priority?o If yes, have they all signed proper renunciations and concurrences?o If not, have they signed the “I consent to the appointment of the personal

representative listed above” section of the do-it-yourself forms?4. Is decedent’s date of death and age at time of death correct?5. Was decedent domiciled in your county or own property in your county?6. Are all people required to be listed, spouse, children, heirs and devisees, listed with

complete addresses? Ages of minor children should also be listed. If personal representative is spouse, child, heir or devisee, he/she should list himself/herself.

7. If a will was submitted, is it original or an authenticated copy probated in another jurisdiction?

o If no, must go to formal probate, see Section 45-3-402(A)(B). Does date on will match date of will stated in application? (It is not required that a will be dated, but a date can help distinguish which will is the most recent if an issue arises.)

Is will signed by testator or someone in the testator’s conscious presence and by the testator’s direction?

Did two witnesses also sign?IF WILL IS VALID, ADMIT IT TO PROBATE (see Sec. 4.5.1, paragraph 8 for details)

8. Has it been more than three years since decedent’s death? If so, probate court only has jurisdiction for intestate estates.

9. Is the application properly verified (signed by applicant in presence of notary public or signed by attorney)?

If all of the above items are correct, the judge can sign the order appointing the personal representative. If the judge does not like the order submitted by the applicant, he or she can draft his or her own order, using Form 4B-103 or Form 4B-104.

Has personal representative submitted a signed, notarized Acceptance of Appointment, Form 4B-105? If so, the judge or staff can issue Letters Testamentary (will) or Letters of Administration (no will). See Probate Judges Manual Section 4.7 for details about Letters.

After the judge signs the order and issues Letters, his/her responsibility in the case usually ends unless a dispute arises. The personal representative or attorney often files other paperwork in the case—notices, inventory, verified statement, but the judge does not usually sign further paperwork unless updated Letters need to be issued or a successor personal representative needs to be appointed. If a dispute arises, the judge should transfer the case to the district court for a formal proceeding, using the information in Chapter 7 of the Probate Judges Manual.4.10 Checklist of Informal Probate and Appointment Pleadings

(open and close informally; can file informal proceedings in probate court or district court)

Informal Probate (testate)

4B-102. Application for Informal Probate of Will and for Informal Appointment of Personal Representative, Section 45-3-301 (must attach original will)

4B-104. Order for Informal Probate of Will and for Informal Appointment of Personal Representative, Section 45-3-303, -308

4B-107. Letters Testamentary and 4B-105. Acceptance, Section 45-3-103, -601

4B-201. Notice of Informal Probate of Will and Appointment of Personal Representative (within ten days of Personal Representative's appointment), Section 45-3-306, -705; see also Section 45-1-401

4B-202. Proof of Notice (notarized), Section 45-1-401C

4B-301. Notice to Known Creditors (within three months of Personal Representative's appointment), Section 45-3-801***

4B-302. Notice to Creditors (published)

4B-401. Inventory and Appraisal (Personal Representative must prepare within three months of appointment; must give to any interested person who requests it; may file with court, not required), Section 45-3-706

4B-501. Accounting, Section 45-3-1003(A)(3)

4B-502. Verified Statement of Personal Representative,Section 45-3-1003

4B-503. Application for Certificate of Full Administration, Section 45-3-1007, optional, must wait one year after Verified Statement is filed to apply for this

4B-504. Certificate of Full Administration

4B-601. Affidavit of poverty and indigency

4B-602. Order Allowing Free Process (rare)

Informal Appointment (intestate)

4B-101. Application for Informal Appointment of Personal Representative, Section 45-3-301

4B-103. Order for Informal Appointment of Personal Representative, Section 45-3-303, -308

4B-106. Letters of Administration and4B-105. Acceptance, Section 45-3-103, -601

4B-201. Notice of Informal Appointment of Personal Representative (within ten days of Personal Representative's appointment), Section 45-3-306, -705; see also Section 45-1-401

4B-202. Proof of Notice (notarized), Section 45-1-401C

4B-301. Notice to Known Creditors (within three months of Personal Representative's appointment), Section 45-3-801***

4B-302. Notice to Creditors (published)

4B-401. Inventory and Appraisal (Personal Representative must prepare within three months of appointment; must give to any interested person who requests it; may file with court, not required), Section 45-3-706

4B-501. Accounting, Section 45-3-1003(A)(3)

4B-502. Verified Statement of Personal Representative,Section 45-3-1003

4B-503. Application for Certificate of Full Administration, Section 45-3-1007, optional, must wait one year after Verified Statement is filed to apply for this

4B-504. Certificate of Full Administration

4B-601. Affidavit of poverty and indigency

4B-602. Order Allowing Free Process (rare)

*** Creditor then has two months to present claims, Section 45-3-801. Personal representative then has 60 days to allow or disallow creditor's claim. Silence (failure to disallow within 60 days) = allowance!!! Section 45-3-806; creditor has 60 days to file request for allowance after claim is disallowed, Section 45-3-804.

6.3.6 Sample Log Public Access to Probate Court FilesRequired Information plus Government-issued ID

NMSC Rule 1-079(D)(3)

# Date Name Address Phone Number (area code) -

File No. or Public Terminal

Gov. Issued ID

1.( ) -

2.( ) -

3.( ) -

4.( ) -

5.( ) -

6.( ) -

7.( ) -

8.( ) -

9.( ) -

10.( ) -

11.( ) -

12.( ) -

13.( ) -

7.3.2 Sample Form of Transmittal Memorandum for Transfer toDistrict Court

STATE OF NEW MEXICO IN THE PROBATE COURTCOUNTY OF BERNALILLO

Probate Court No. ______________ District Court Case # _______________

IN THE MATTER OF THE ESTATE

OF _____________________, Deceased

TRANSMITTAL MEMORANDUM

I, _____________Clerk of the Probate Court and Ex-Officio Recorder of the County

of__________________, New Mexico, pursuant to an order of the (select one) [____________

County Probate Court] OR [__________ Judicial District Court] entered ________ (date of

order), do hereby transmit to the Clerk of the __________Judicial District Court the following

papers, which comprise all of the ORIGINAL RECORDS filed in the Probate Court relating to

said Estate; to wit:

Document Date FiledApplication for Informal Probate of Will and for Informal Appointment of Personal Oct. 20, 2000Representative

Last Will and Testament of__________ Oct. 20, 2000

Clerk’s Certificate of Judgment Approving Last Will and Testament Oct. 20, 2000

Certificate of Review of Death Certificate Oct. 20, 2000

Order for Informal Probate of Will and for Informal Appointment of Personal Oct. 20, 2000

Letters Testamentary and Acceptance Oct. 20, 2000

Notice to Creditors Nov. 21, 2000

Notice of Denial of Claims Dec. 1, 2000

Affidavit of Publication Jan. 8, 2001

Petition for Transfer to District Court Feb 17, 2000

Order Transferring Cause to District Court Feb. 19, 2000

WITNESS MY HAND AND SEAL OF THE PROBATE COURT THIS ________ DAY

OF _______________________________, 20__.

______________________________________ CLERK OF THE PROBATE COURT

By: ____________________________________

Deputy Clerk

Received from the Clerk of the Probate Court, the papers listed above. Witness my hand and seal of the District Court this _______ day of ________________, 20___.

_____________________________________ CLERK OF THE DISTRICT COURT

By: ____________________________________Deputy Clerk

7.3.3 Sample Order for Permanent Transfer to District Court

STATE OF NEW MEXICO IN THE PROBATE COURTCOUNTY OF ___________________

No.

IN THE MATTER OF THE ESTATE OF ______________, DECEASED

TRANSFER ORDER

This matter came before the Court on review of the file. The Probate Court of ____________

County, New Mexico has determined that it is declining to oversee this case due to the fact that

there is a dispute between family members concerning the distribution of the estate [or insert

other reasons/findings]. The Probate Court finds that this case should be transferred from the

Probate Court of _______________ County to the _________ (insert number of the district

court, such as Second, Thirteenth, etc.) Judicial District Court for ___________ County, New

Mexico for a formal proceeding. This transfer is subject to any District Court docket fee or other

fees that may apply.

IT IS HEREBY ORDERED that the case In the Matter of the Estate of ______________,

Deceased, Probate # _________ filed in the Probate Court of _________ County be transferred

to the __________ (insert number of the district court, such as Second, Thirteenth, etc.) Judicial

District Court of ___________ County, New Mexico, for a formal proceeding.

______________________________Judge’s Name____________ County Probate JudgeAddressCity/State/Zip

7.3.4 Sample Order of Recusal and Transfer to District Court

STATE OF NEW MEXICO IN THE PROBATE COURTCOUNTY OF ____________________

No.

IN THE MATTER OF THE ESTATE OF _____________, Deceased

TRANSFER ORDER

This matter came before the Probate Court on review of the file. ______________, Probate

Judge, recuses himself/herself from the above-referenced cause.

The Probate Court finds that this case should be transferred from the Probate Court of

_________________ County to the _________ (insert number of the district court, such as

Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico.

IT IS HEREBY ORDERED that the case In the Matter of the Estate of ______________,

Deceased, Probate # _________ filed in the Probate Court of ____________________ County

be transferred to the _________ (insert number of the court, such as Second, Thirteenth, etc.)

Judicial District Court for ___________ County, New Mexico.

______________________________Judge’s Name____________ County Probate JudgeAddressCity/State/Zip

7.3.5 Sample Order for Transfer to District Court with Remand to Probate Court after Resolution of Dispute

STATE OF NEW MEXICO IN THE PROBATE COURTCOUNTY OF ____________________

No.

IN THE MATTER OF THE ESTATE OF _______________, Deceased

TRANSFER ORDER

This matter came before the Probate Court on review of the file. The Probate Court of

____________ County, New Mexico has determined that it has lost jurisdiction due to the fact

that there is a dispute concerning the distribution of the estate. The Probate Court finds that this

case should be transferred from the Probate Court of ____________________ County to the

___________ (insert number of the district court, such as Second, Thirteenth, etc.) Judicial

District Court for ___________ County, New Mexico for the determination of all disputed

issues.

IT IS HEREBY ORDERED that the case In the Matter of the Estate of ______________,

Deceased, Probate # ____________ filed in the Probate Court of ____________________

County be transferred to the ______________ (insert number of the district court, such as

Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for

determination of all disputed issues, subject to remand back to the Probate Court for completion

following resolution of the disputed issues.

______________________________Judge’s Name____________ County Probate JudgeAddressCity/State/Zip

7.3.6 Sample Order to Decline Jurisdiction “for any reason”

STATE OF NEW MEXICO IN THE PROBATE COURTCOUNTY OF ____________________

No.

IN THE MATTER OF THE ESTATE OF ____________________, Deceased

TRANSFER ORDER

This matter came before the probate court on review of the file. The probate court of

____________________ County, New Mexico has determined that it should exercise its

statutory right to decline the application pursuant to Sections 45-3-305 and 45-3-309, NMSA

1978. The probate court finds that this case should be transferred from the probate court of

____________________ County to the _____________ (insert number of the district court, such

as Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for a

formal probate proceeding.

In support of this order, the probate court finds:

Judge may insert facts and cites to statutes here that will help the district judge

understand the reasons why the probate judge is declining to act. Number each

finding with a separate number.

IT IS HEREBY ORDERED that the case in the matter of the estate of ______________,

deceased Probate # ____________ filed in the probate court of ____________________ County

be transferred to the ______________ (insert number of the district court, such as Second,

Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for a formal

probate proceeding.

______________________________Judge’s Name____________ County Probate JudgeAddressCity/State/Zip

7.3.7 Sample Order of Recusal for “ex parte” Communications

STATE OF NEW MEXICO IN THE PROBATE COURTCOUNTY OF ____________________

No.

IN THE MATTER OF THE ESTATE OF ____________________, Deceased

TRANSFER ORDER

This matter came before the probate court on review of the file. The probate court of

____________________ County, New Mexico is declining the application due to repeated

attempts by ____________ (name of person initiating ex parte communications) at ex parte

communications with the judge. ______________, Probate Judge, recuses himself/herself from

the above-referenced cause.

The probate court finds that this case should be transferred from the probate court of

____________________ County to the _____________ (insert number of the district court, such

as Second, Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for a

formal probate proceeding.

In support of this order, the probate court finds:

1. ____________ (name of person who initiated ex parte communications) has made or attempted to make ex parte communications with the court.

2. These communications make it impossible for the court to preside over this case in a fair and impartial manner, as required by law.

3. Under Section 34-7-9, NMSA 1978, whenever the probate judge shall, for any reason, be interested or disqualified from acting in any proceeding coming within the jurisdiction of the probate court, he shall upon his own motion or that of any interested party, forthwith enter an order transferring such proceeding to the district court having jurisdiction in that county and directing the probate clerk to deposit forthwith within the office of the clerk of said district court a certified copy of said order together with all original.

IT IS THEREFORE ORDERED that the probate court recuses itself from hearing this matter.

IT IS FURTHER ORDERED that the case in the matter of the estate of ______________,

deceased Probate # ____________ filed in the probate court of ____________________ County

be transferred to the ______________ (insert number of the district court, such as Second,

Thirteenth, etc.) Judicial District Court for ___________ County, New Mexico for a formal

probate proceeding.

______________________________Judge’s Name_________________ County Probate JudgeAddressCity/State/Zip

10.14 Sample Authentication Form

STATE OF NEW MEXICO )

)ss.

COUNTY OF ___________ )

I, ____________________________________, County Clerk and Ex-Officio Clerk of the

Probate Court of the State of New Mexico, within and for the County of _______________, do

hereby certify the following to be a true, correct and complete copy of (insert name and # of Estate

and list of pleadings attached (or state that it is a complete copy of the file starting with 1 st document

filed on xx date and ending with last document, filed on xx date_________________

____________________________________________________________________________

____________________________________________________________________________

____________________________________________________________________________

as the same remains on file and of record in my said office.

IN WITNESS WHEREOF, I have set my hand and affixed the seal of said Court this

________ day of ________________, 20____.

_____________________________________________

Signature of ________________________ County Clerk

(Affix seal here)

UNITED STATES OF AMERICA

STATE OF NEW MEXICO

COUNTY OF ___________________

I, __________________________________, Judge of the Probate Court of the State of New

Mexico, within and for the County of ___________________________, do hereby certify that

____(insert name of County Clerk)____________, whose name is subscribed to the foregoing

Certificate of Attestation, now is, and was at the time of the signing and sealing of the same, the

County Clerk and Ex-Officio Clerk of the Probate Court of the State of New Mexico, within and for

the County of ____________________, and keeper of the seal and records thereof, duly elected,

commissioned and qualified to office; that full faith and credit are and of right ought to be given to

(his/her) official acts as such, in all Courts of Record in the United States and elsewhere, and that

(his/her) attestation is in due form of law and by the proper officer.

IN WITNESS WHEREOF, I have set my and affixed the seal of said Court at (insert name of

City), in said County of _________________ and State of New Mexico, this ______ day of

____________, 20____.

(affix seal here) ______________________________________Signature of Judge of the Probate Court ofthe State of New Mexico within and for the County of __________________________

UNITED STATES OF AMERICA

STATE OF NEW MEXICO

COUNTY OF ____________________

I, (insert name of county clerk), County Clerk and Ex-Officio Clerk of the Probate Court of the State

of New Mexico, within and for the County of ___________________, do hereby certify that (insert

name of probate judge), whose name is subscribed to the foregoing Certificate of Attestation, now is,

and was at the time of signing and sealing the same, Judge of the Probate Court of the State of New

Mexico, within and for the County of _________________, and was duly elected, commissioned

and qualified to office; that full faith and credit are and of a right ought to be given to all (his/her)

official acts as such, in all Courts of Record in the United States and elsewhere, and that (his/her)

attestation is in due form of law and by the proper officer.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court

at (insert name of City), in said County of _________________________ and state of New Mexico,

this ____ day of ____________, 20___.

(Affix seal here) ________________________________________

Signature of ___________________County Clerk

10.15.1 Sample Affidavit Form [DO NOT MODIFY]

STATE OF NEW MEXICO ) ) ss.

COUNTY OF _________________ )

AFFIDAVIT OF SUCCESSOR IN INTEREST TO____________________________ (Name of Decedent)

_____________________________, the affiant herein, having been duly sworn, states upon oath:

1.  The affiant(s) is/are the successor(s) of _____________________ (name of decedent), deceased.

2.  The value of the entire estate of the decedent, wherever located, less liens and encumbrances, does not exceed $50,000.

3.  Thirty days have elapsed since the death of the decedent.  4.  No application or petition for the appointment of a personal representative is pending

or has been granted in any jurisdiction.5.  Pursuant to NMSA Section 45-3-1201 (2012 Cum. Supp.), the affiant(s), as

successor(s) of the decedent, is/are entitled to the payment of any sums of money due and owing to the decedent, to the delivery of all tangible personal property belonging to the decedent and in the possession of another, and to the delivery of all instruments evidencing a debt, obligation, stock or chose in action belonging to the decedent. 

DATED: __________________, 20___.

________________________________AFFIANT*

*Each affiant should sign on a separate line and and also sign a separate acknowledgement below.

_________________________________, Affiant, being first duly sworn, states on oath that all of the representations in this affidavit are true as far as affiant knows or is informed, and that such affidavit is true, accurate and complete to the best of affiant's knowledge and belief.

_________________________________AFFIANT*

SUBSCRIBED AND SWORN TO before me this ______ day of _________________, 20___ by ________________________, Affiant.

__________________________________NOTARY PUBLIC

My Commission Expires:

10.16.1 Sample Affidavit Form [DO NOT MODIFY]

AFFIDAVIT OF TRANSFER OF HOMESTEAD TO SURVIVING SPOUSE

PURSUANT TO NMSA SECTION 45-3-1205 (2012 Cum. Supp.)

The undersigned, _____________________________________________, (name of surviving spouse, hereinafter "affiant") being first duly sworn, deposes and says that:

1. Six months have elapsed since the death of ____________________ (name of deceased spouse, hereinafter "decedent") as shown on the death certificate.

2. At the time of death of the decedent, affiant and decedent were married and owned their homestead described as:

(insert legal description of home here)as community property.

3. A copy of the deed with the legal description of the homestead is attached hereto.4. But for the homestead, the decedent's estate is not subject to any judicial probate

proceedings in district court or probate court.5. No application or petition for appointment of a personal representative or for admittance

of a will to probate is pending or has been granted in any jurisdiction.6. Funeral expenses, expenses of last illness, and all unsecured debts of the decedent have

been paid.7. The affiant is the surviving spouse of the decedent and is entitled to title to the homestead

by intestate succession or by devise (if devised under a valid last will of decedent, the original will is attached to the affidavit).

8. No other person has a right to the interest of the decedent in the described property.9. No federal or state tax is due on the decedent's estate.10. The property was the homestead of decedent and affiant as defined in Section 45-3-1205,

NMSA 1978, and the full value of the property as assessed for property taxation purposes does not exceed five hundred thousand dollars ($500,000).

The affiant affirms that all statements in the affidavit are true and correct and further acknowledges that any false statement herein may subject affiant to penalties relating to perjury or subornation of perjury.Dated: ___________________

______________________________________Affiant (Print Name Here, Sign on Line Above)

A C K N O W L E D G E M E N TSTATE OF NEW MEXICO )

)ss.COUNTY OF __________________)

This instrument was subscribed, sworn to and acknowledged before me this _____ day of __________________, 20____, by ____________________, Affiant.

_________________________________NOTARY PUBLIC

My commission expires:

4B-103. Order of informal appointment of personal representative (no will)

STATE OF NEW MEXICO  IN THE PROBATE COURT  _______________ COUNTY

IN THE MATTER OF THE ESTATE OF   No.      ______________________, DECEASED.

ORDER OF INFORMALAPPOINTMENT OF PERSONAL REPRESENTATIVE

(NO WILL)

This matter comes before the court on the Application for Informal Appointment of Personal Representative of the Estate and the court having considered the application, FINDS THAT:   

1.   The Application for Informal Appointment of Personal Representative is complete; 2.   The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief; 3.   On the basis of the statements in the application, this court has jurisdiction; 4.   On the basis of the statements in the application, venue is proper; 5.   Applicant has made oath or affirmation that after the exercise of reasonable diligence, applicant is unaware of any unrevoked last will and testament or other testamentary instrument relating to property in this state or under the laws of New Mexico, and the request for the appointment does not relate to any will; 6.   On the basis of the statements in the application, the applicant gave notice of the filing of the application to each person demanding notice, if any; 7.   It appears from the application that this proceeding was commenced within the time limitations prescribed by the laws of the State of New Mexico; 8.   The applicant is an interested person as defined by law, and is not disqualified to serve as personal representative of the estate of the decedent; 9.   From the statements in the application, the applicant has priority entitling applicant to be appointed as personal representative of the estate of the decedent; 10.   According to the application, no other personal representative has been appointed in New Mexico or in any other state.

    THEREFORE, THIS COURT ORDERS that: A.   The application is granted. B.   The applicant ______________________ (name of applicant) is informally appointed as the personal representative of the estate of the decedent, without bond, in an unsupervised administration. C.   Letters of Administration shall be issued to applicant upon applicant's acceptance of the office of personal representative.

    Probate Judge

Submitted by:  ______________________________    Signature of applicant

  ______________________________    Printed name  ______________________________    Street address  ______________________________    City, state and zip code  ______________________________    Telephone number 

4B-104. Order of informal probate of will and appointment of personal representative (will) STATE OF NEW MEXICO  IN THE PROBATE COURT  _______________ COUNTY

IN THE MATTER OF THE ESTATE OF   No.      ______________________, DECEASED.

ORDER OF INFORMAL PROBATE OF WILL ANDAPPOINTMENT OF PERSONAL REPRESENTATIVE

(WILL)

This matter comes before the court on the application for informal probate of the will of the decedent and for informal appointment as personal representative of the estate.  The court having considered the application, FINDS THAT:

1.   The Application for Informal Probate of Will and for Informal Appointment of Personal Representative is complete; 2.   The applicant has made oath or affirmation that the statements contained in the application are true to the best of the applicant's knowledge and belief; 3.   On the basis of the statements in the application, this court has jurisdiction; 4.   On the basis of the statements in the application, this court has venue; 5.   An original, duly executed and apparently unrevoked will of the decedent is in the possession of this court; 6.   On the basis of the statements in the application, the applicant gave notice of the filing of the application to each person demanding notice, if any; 7.   It appears from the application that this proceeding was commenced within the limitations prescribed by the laws of the State of New Mexico; 8.   The applicant is an interested person as defined by law, and is not disqualified to serve as personal representative of the estate of the decedent; 9.   From the statements in the application and from the contents of the will, the applicant has priority entitling applicant to be appointed as personal representative of the estate of the decedent; 10.   According to the application, no other personal representative has been appointed in New Mexico or in any other state.

THEREFORE, THIS COURT ORDERS that: A.   The application is granted; B.    The will of the decedent is informally probated; C.   The applicant ______________________ (name of applicant) is informally appointed as the personal representative of the estate of the decedent, without bond, in an unsupervised administration;  D.   Letters Testamentary shall be issued to applicant upon applicant's acceptance of the office of personal representative.  

 

      Probate Judge   

Submitted by:   ______________________________    Signature of applicant  ______________________________    Printed name  ______________________________    Street address  ______________________________    City, state and zip code  ______________________________    Telephone number 

4B-106. Letters of administration (no will)

STATE OF NEW MEXICO  IN THE PROBATE COURT _______________ COUNTY

IN THE MATTER OF THE ESTATE OF   No.      ______________________, DECEASED.

LETTERS OF ADMINISTRATION(NO WILL)

TO WHOM IT MAY CONCERN:    Notice is now given that __________________________ (name of personal representative), has been appointed to serve as the personal representative of the estate of ___________________________, and has qualified as the decedent's personal representative by filing with the court a statement of acceptance of the duties of that office.   The personal representative has all of the powers and authorities provided by law and specifically, by Section 45-3-715 NMSA 1978.   Issued this ____ day of _________________, ______.   

     Clerk of the Probate Court 

  By:     

    Deputy Clerk    (Seal)  

4B-107. Letters testamentary (will)

STATE OF NEW MEXICO   IN THE PROBATE COURT  _______________ COUNTY

IN THE MATTER OF THE ESTATE OF   No.      _____________________, DECEASED.

LETTERS TESTAMENTARY(WILL)

TO WHOM IT MAY CONCERN:   Notice is now given that __________________________ (name of personal representative), has been appointed to serve as the personal representative of the estate of ___________________________, and has qualified as the decedent's personal representative by filing with the court a statement of acceptance of the duties of that office.   The personal representative has all of the powers and authorities provided by law and specifically, by Section 45-3-715 NMSA 1978.   Issued this ____ day of _________________, ______.   

     Clerk of the Probate Court 

  By:     

    Deputy Clerk    (Seal)